Scooter Class Action Unlikely to Succeed

Nine named plaintiffs filed a putative class action in Los Angeles Superior Court on October 19, 2018, against two scooter ride share companies, Lime and Bird, and two scooter manufacturers, Segway and Xiaomi USA, complaining that the scooters are wreaking havoc in California’s public places and injuring pedestrians, scooter riders and property owners. Daniellee Borgia, et al. v. Bird Rides, Inc., et al., LASC Case No. 18STCV01416. Three plaintiffs claim they tripped over scooters strewn on the sidewalk and/or blocking entrances to shops, and suffered physical injuries. Three plaintiffs claim they were injured by scooter riders crashing into them. One plaintiff claims a scooter rider collided with his car and damaged it. One plaintiff claims that scooters blocked her from parking in a handicap spot. One plaintiff claims he was injured when his scooter’s accelerator locked up, causing him to lose control of the scooter and fall off. Plaintiffs assert claims for strict products liability, negligence, negligence per se, gross negligence, breach of implied warranties of fitness for a particular purpose and merchantability, public nuisance, declaratory and injunctive relief, and aiding and abetting assault. Plaintiffs seek to certify four separate sub-classes, two each against Bird and Lime, consisting of (1) California pedestrians who have been, will be and/or are endangered of being injured and/or damaged by scooters (the “Pedestrian Classes”), and (2) Californians injured while riding the scooters (the “Rider Classes”). Plaintiffs seek, among other things, to enjoin Lime and Bird from deploying scooters in California, and compensatory and punitive damages.

Plaintiffs face an uphill battle with their case, for several reasons. First, the crux of the action is about holding defendants responsible for scooter riders’ alleged failure to abide by the “rules of the road,” including riding on sidewalks, and third-party vandalism, such as knocking over parked scooters. That could be a very tough sell in light of the popularity of the environmentally-friendly scooters. Second, plaintiffs’ complaint suffers from a variety of pleading defects, some of which likely cannot be cured. Third, even if plaintiffs can get past the pleading stage, proving their allegations, especially to justify the requested injunctive relief, will be difficult, and defendants have good defenses. Finally, obtaining class certification will be extremely difficult.

The Rider Classes face perhaps the most difficulties. Their user/rental agreements with Lime and Bird contain various provisions that protect the companies. These include a waiver and release of all claims absolving the companies of any liability related to the riders’ use of the scooters, and clauses that disclaim any warranties and that acknowledge that the rider is assuming all risks associated with scooter activity. The riders also waived any right to class claims, and agreed to arbitrate any claims. These contract provisions should control the riders’ rights (or lack thereof) as against Lime and Bird, unless the court were to find the provisions unenforceable, which is unlikely given that similar provisions in contracts related to other activities, such as skiing, are enforceable.

As presently pleaded, both pedestrian and rider plaintiffs’ strict liability claims fail because the complaint does not allege facts demonstrating the existence of any manufacturing or design defect in any of the scooters involved in each of plaintiffs’ accidents. The complaint states, in conclusory fashion, that the scooters contain “defective electronics, brakes, battery charge indicators, wheels and tires, internal power tubes and accelerators, and do not contain adequate instructions and/or warnings of hazards and dangers.” However, none of these purported defects is alleged to have played a role in any of the plaintiffs’ accidents, with the exception of the one rider plaintiff who alleges a single incident where his scooter’s accelerator malfunctioned. The pedestrian plaintiffs who allegedly tripped over scooters lying on the ground cannot maintain a strict liability claim – the fact that the scooters were lying on the ground does not render them defective.

The pedestrian plaintiffs’ negligence and gross negligence theories likely will fail because neither the scooter manufacturers nor the scooter ride share companies owe them a duty of care. Any duty to the pedestrians is owed by the scooter riders. Indeed, in their user contracts, the riders agreed to obey all traffic and other laws pertaining to the use of the scooter, and specifically agreed to park the scooter in a visible upright position using the kickstand, in a lawful parking spot, and not in a heavily trafficked area where the scooter is in danger of getting knocked down. Moreover, the scooters lying on the ground likely were plainly visible, giving defendants an “open and obvious” defense to the pedestrian plaintiffs’ negligence claims.

The pedestrian plaintiffs’ warranty claims likely will fail, too, because there is no privity between them and any of the defendants. The pedestrian plaintiffs did not rent the scooters that allegedly injured them. In any event, plaintiffs don’t allege any facts showing a breach of these implied warranties.

Plaintiffs’ negligence per se claim is based on alleged violations of various statutes pertaining to rider conduct while operating a scooter. Plaintiffs allege, in conclusory fashion, that defendants violated and/or assisted violations of these statutes, but the complaint is devoid of any facts supporting this accusation. In any event, it is unlikely the court will hold defendants responsible for rider traffic violations.

Plaintiffs’ public nuisance claim should not succeed because the use of motorized scooters is sanctioned by statute. California Civil Code § 3482 provides that nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. The California legislature enacted Vehicle Code § 21220 et. seq. with the stated goal of promoting “the use of alternative low-emission or no-emission transportation,” noting that “[t]his state has severe traffic congestion and air pollution problems, particularly in its cities, and finding ways to reduce these problems is of paramount importance.” Cal. Veh. Code § 21220(a). The legislature specifically found at § 21220(b) that “[m]otorized scooters that meet the definition of Section 407.5 produce no emissions and, therefore, do not contribute to increased air pollution or increase traffic congestion.” Thus, the regulatory scheme set forth in § 21220 et seq. was enacted specifically to promote the use of the type of zero emission scooters offered by Bird and Lime in order to tackle two significant problems plaguing California cities, including Santa Monica: traffic congestion and carbon emissions. The scooter share services are designed to help the state and cities to achieve these important goals. Even after some early noise about scooter users riding helmetless, the legislature recently amended § 21235 to eliminate the helmet requirement for adults and clarify the definition of an electric scooter. In so doing, the legislature made clear its approval of this new form of sustainable transportation.

Plaintiffs’ aiding and abetting assault claim is, in a word, nonsense. The riders control the scooters while in use. Hertz and Avis aren’t subject to aiding and abetting assault claims if one of their customers violates the traffic laws, or happens to hit a pedestrian or another car.

In light of the above difficulties, it is unlikely plaintiffs will obtain an injunction precluding Lime and Bird from deploying the scooters. The relatively small number of incidents, even if defendants could be blamed for them, does not justify the overreaching injunction plaintiffs seek, particularly in light of the benefits derived from the scooters.

Finally, class treatment of the claims is not appropriate. Here are just a few reasons why:

The named plaintiffs are not adequate class representatives. There is a conflict of interest between the rider classes and the pedestrian classes. The pedestrian classes allegedly are being injured or endangered by scooter riders – that is, the rider classes. To make matters worse, the riders agreed in their user contracts to defend and indemnify Lime and Bird against any and all claims arising from their use of the scooters, putting the riders directly adverse to the pedestrian classes. That provision also creates a conflict between the rider class members. In addition, the putative members of the rider classes are also members of the pedestrian classes because they not only ride scooters, they also are pedestrians. Thus, the interests of the members of the pedestrian classes are in conflict. Plaintiffs’ counsel in turn appears to have a conflict of interest and may not be able to represent both sets of classes, or the putative pedestrian classes as currently defined.

Plaintiffs cannot prove their claims with common proof. There is no common alleged defect in the scooters, no common cause or factual scenario of scooter accidents, and no common set of facts or issues pertaining to the alleged public nuisance caused by the scooters. Those circumstances will vary by specific geographic location; the location’s terrain, including the layout of buildings, sidewalks, streets, right of ways, etc.; pedestrian, scooter and car traffic; time of day; location, orientation and operation of the scooter(s); visibility; and so on.

Individualized issues pertaining to the putative class members predominate over any common issues, which would result in a series of mini-trials. For example, the circumstances of each putative class member’s accident or “situation” with the scooters are infinitely different. Those events will have occurred at different times and places, involved different people, and under different facts. Defendants are entitled to prove that any putative class member’s alleged injury is the fault of someone else, including the class member. For instance, was the scooter lying on the ground open and obvious enough that the class member should not have tripped over it? Was the scooter really in the way? Who put it there? Did someone other than the rider knock it over? Was that on purpose or accidental? All of these issues require individualized evidence to resolve.

There is no damages model applicable across the entire class, for any of the putative classes. For instance, each class includes individuals who have suffered no injury whatsoever. And as to those who have suffered injury, those injuries vary. This much is demonstrated by the variety of injuries allegedly suffered by the nine named plaintiffs.

The classes are not ascertainable or manageable. For example, how does the court identify who is a proper member of the pedestrian classes? As defined, it is not every Californian – only those allegedly injured or endangered, or will be injured or endangered, by the scooters. Arguably, there is no reasonable method to identify those individuals, particularly those who may be injured or endangered in the future.

Despite the foregoing flaws, the action has received media attention, which may be disruptive to defendants. And plaintiffs’ counsel will undoubtedly attempt to refine their theories into more viable claims as the litigation proceeds. Plaintiffs’ firms will be watching what happens in this first case of its kind, as more such suits are likely to be filed.

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